Tag Archives: federal

A while back images where shown of Sheriff Arpaio, from Arizona, having 220 immigrants march in a line with shackles. (One story here). This story, among others, prompted lawsuits against Arpaio. The first case granted an injunction against Arpaio and the Sheriff’s Office. The second case ruled that the Human Smuggling Act (which allowed the arrest and prosecution of immigrants).

It is interesting to point out that these decisions came before the 9th Circuit Court of Appeals decision (Oct. 8, 2013), discussed here, which held Arizona S.B. 1070 was void and preempted.

Sheriff Arpaio created this policy based on the Human Smuggling Act, Ariz. Rev. Stat. 13-2319 which allowed for the arrest and prosecution of immigrants for “conspiring to transport themselves within Maricopa County.”

District Court Judge, like the reasoning of the 9th Circuit a few days later, ruled that the statute was preempted by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.

The court also certified the class, which included “all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. 13-2319 [Human Smuggling Act].”

You might remember the very controversial legislation against unauthorized aliens in Arizona. Arizona Governor Jan Brewer was launched into the spotlight when she signed this bill. The ruling of the 9th Circuit is important because it points to the exclusive control of the federal government of immigration.

Setting aside the vagueness and incomprehensible nature of the law, the Court explained preemption. The 9th Circuit focused on three main arguments: (1) federal government’s exclusive control over immigration policy; and (2) how Arizona’s law conflicted with federal’s laws.

The 9th Circuit first commented on why the federal government has this control.

Federal control over immigration policy is integral to the federal government’s ability to manage foreign relations:

“Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

Then, the Court explained why the federal government has exclusive control over immigration and not the states. The Court stated:

Congress did not, however, grant states the authority to prosecute [section] 1324 violations, but instead vested that power exclusively in the federal authorities. Thus, “the inference from these enactments is that the role of the states is limited to arrest for violations of federal law.”

(citations omitted).

Lastly, the 9th Circuit pointed to the conflict of laws of Arizona and federal statutes as follows:

First, Arizona’s statute provided “additional and different state penalties.”

Second, Arizona “conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration priorities.”

Third, Arizona “criminaliz[ed] conduct not covered by the federal harboring provision.” Arizona also “criminalizes encouraging or inducing an alien to come to or reside in Arizona.”

As a side note, if you are interested in standing and organizational standing, the 9th Circuit Court of Appeals discussed the standard and explained how plaintiffs had standing.

Mostly everyone has a cell phone. A lot of smartphones have GPS capabilities. This can be handy when you are looking for directions and you are lost. However, what about being tracked? For instance, unless you change your privacy settings, your photos will keep track of where you took the picture and what time.

When we think of the Fourth Amendment we remember that a search and seizure may require a warrant. If there is no expectation of privacy, i.e. in a garbage bag we got rid of, then the government wouldn’t need a warrant. However, if we have an expectation of privacy, i.e. to enter your house, then the government must have a warrant.

An expectation of privacy usually is the crux of a search and seizure case. Here, the ACLU argued that people have a reasonable expectation of privacy when they are being tracked for a long period of time and the data gathered is collected in great detail.

In this case, this argument was not discussed by the court.

Why would this not be discussed? The Fourth Amendment deals with government actions. In other words, the seizure or search has to be collected by the government. In a similar case, the Supreme Court had decided that the government must obtain a warrant if it wants to install a GPS tracking device. SeeUnited States v. Jones (2012).

However, this case was found to be different. The reason for this is because the Fifth Circuit Court of Appeals found that the information was collected by a third-party, i.e. the cell phone carrier. The court explained,

Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a [section] 2703(d) order, just as it can subpoena other records of a private entity. We agree.

Id. (citations omitted).

Here, the government was not installing a GPS tracking device. The Government was accessing a business record owned by carriers. The court stated:

… cell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use. The Government does not require service providers to record this information or store it. The providers control what they record and how long these records are retained.

Consequently, the court found that the Government did not need a warrant.

You may remember this story that exploded all over the news. Around the end of 2009 and start of 2010, the news reported that some Toyota cars had sudden-acceleration defects.

Toyota recently settled a federal class action. U.S. District Court Judge James V. Seina approved of the federal class action settlement. The settlement approved is for $1.6 billion, which includes attorney fees and costs calculated at $227 million. The class members are said to receive anywhere between $125 to $10,000 each.

Toyota has denied liability for the alleged sudden-acceleration problem with the vehicles, as provided in the language of the settlement. The ABA reports that a spokeswoman for Toyota stated,

This agreement allows us to resolve a legacy legal issue in a way that provides significant value to our customers and demonstrates that they can depend on Toyota to stand behind our vehicles,

It is important to note that Toyota is still facing trials in more than 80 state court lawsuits over the alleged sudden-acceleration defects.

It is important to note that the reasoning behind this ruling was based on the fact that there are States which granted same-sex marriage but were not recognized federally. By failing to recognize those same-sex marriages, the government was discriminating against same-sex married couples. In doing so, same-sex married couples were deprived of the benefits and responsibilities of over 1,000 federal laws. Including protections under criminal law and provide financial harm to children of same-sex couples.

The Supreme Court noted that the State’s authority to regulate marriages was being squashed by the federal government. Based on precedent, “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.” “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.'” (italics added).

Instead of respecting the State’s authority to regulate marriages, DOMA’s purpose was to “impose a disadvantage, a separate status, and so a sigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Given that DOMA’s purpose was to impose restrictions and disabilities, the Supreme Court stated that “[b]y doing so [DOMA] violates basic due process and equal protection principles.”

The Supreme Court found that

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency….

DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

Generally, it is well-known that under the Spending Clause of the Constitution if you want federal funding, you have to abide by the conditions/limitations imposed by the government. For instance, you could receive a federal grant as long as you submit X reports to the government every month. And generally, if you are opposed to these policies/conditions, you always have the option of declining the grant.

Think, for example, of the grant offered to States if they adopt the federal Affordable Care Act Medicaid extensions. Some States have agreed to expand, while others have rejected the expansion. The States that choose to expand will receive monetary aid, while the rejecting States will not. See the May 29, 2013 image here.

The Alliance for Open Society case deals with a organization receiving federal funds to combat AIDS/HIV. As a condition for this federal funding, the government required the organization to adopt policies against prostitution and sex trafficking.

Justice Roberts pointed to how the court has interpreted the First Amendment. Pursuant to the Freedom of Speech, the government is prohibited from telling people what they must say. See, e.g., Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 US 47, 61. Consequently, the Supreme Court held that the requirement violated the First Amendment.

The question for the Supreme Court then focused on whether the government can still impose that requirement as a condition for receipt of federal funding. The Supreme Court explained,

As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds….

At the same time, however, we have held that the Government “‘may not deny a benefit to a person on the basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.'”… In some cases, a funding condition can result in an unconstitutional burden on First Amendment rights.

This is a fine line being followed by the Supreme Court. The Supreme Court distinguished cases where the government infringes the Freedom of Speech with cases where Congress is merely deciding not to subsidize certain actions/scenarios/circumstances.

The Supreme Court explains these different scenarios as follows:

We explained that Congress can, without offending the Constitution, selectively fund certain programs to address an issue of public concern, without funding alternative ways of addressing the same problem. In Title X, Congress had defined the federal program to encourage only particular family planning methods. The challenged regulations were simply “designed to ensure that the limits of the federal program are observed,” and “that public funds [are] spent for the purposes for which they were authorized…

The regulations governed only the scope of the grantee’s Title V projects, leaving it “unfettered in its other activities.” … The TitleX grantee can continue to . . . engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.” … Because the regulations did not “prohibit[] the recipient from engaging in the protected conduct outside the scope of the federally funded program,” they did not run afoul of the First Amendment.

The gist of the case is that Sutter, a pediatrician, had a fee-for-services contract, which required arbitration for all contractual disputes. When Oxford failed to promptly pay him and other physicians, Sutter filed a class action in New Jersey. After filing, the court compelled arbitration. The arbitrator concluded that the contract called for class action arbitration. Sutter appealed to higher courts, but these appeals were denied.

The Supreme Court explained its decision as follows. First, the parties agreed to go to arbitration in their contract. Second, an arbitrator looks at the contract, makes a decision based on the contractual language, and this decision is binding. Thirdly, and most importantly, the Supreme Court explained that judicial review is limited to whether the arbitrator interpreted the contract, not whether the court agreed with the decision. Consequently, because the arbitrator considered the contract, the arbitrator’s decision stands. They only way to vacate an arbitral decision is when an arbitrator strayed from his task of interpreting the contract. In other words, not when he performed his task poorly.

As a note: In prior decisions (Steelworkers Trilogy/Misco) in the labor context under the Labor Management Relations Act (LMRA), the Supreme Court had ruled that a contractual language had to explicitly allow class actions in the arbitration clause. Here, the arbitration clause did not do so.

This raises the question of how the Federal Arbitration Act (FAA) reconciles with LMRA arbitrations when they are both present. In this case, only the FAA was involved.

Seeking immigration or legal advice sometimes comes with the risk that the person you are talking to is committing fraud.

The most public cases of these frauds are known as “Notario Fraud” or “Immigration Consultants Fraud.” Notarios or immigration consultants use false advertising and fraudulent contracts. They hold themselves as qualified to help immigrants to obtain lawful status or perform other legal functions. (You can read more about Fight Notario Fraud at the ABA).

Now, federal agents were indicted in an immigration fraud scheme led by a L.A. attorney. The indictment alleges two conspiracies against the US involving bribery and fraud, seven counts of bribery, as well as making false statements and misuse of government seals.

The U.S. Attorney stated in a statement,

The conspiracy was allegedly orchestrated by a Los Angeles attorney who paid bribes as high as $10,000 to officials with several agencies in the Department of Homeland Security to help secure immigration benefits for aliens he was representing.

The indictment claims alleged that Kwan Man “John” Lee bribed public officials to get immigration benefits for clients who paid him, at times, more than $50,000. Lee was charged in a previous criminal complaint and is not a defendant in the indictment.

Minnesota Lawyer Blog brings to our attention that a new advisory committee has been formed to recommend a new U.S. Attorney.

The current U.S. Attorney B. Todd Jones has been nominated to serve as the permanent director of the Bureau of Alcohol, Tobacco, and Firearms (ATF) and his confirmation hearing is expected to be held soon, the release states.

Judge Timothy O’Malley of the Minnesota Office of Administrative Hearings and the former head of Minnesota’s Bureau of Criminal Apprehension will chair the committee, which will also include Annamarie Daley, a Minneapolis attorney in private practice; former U.S. Attorney Thomas Heffelfinger; Stearns County Attorney Janelle Kendall; Donald Lewis, Dean of Hamline Law School; retired St. Louis County Judge Carol Person; and Chief Thomas Smith of the St. Paul Police Department.

The committee will review letters of interest, conduct interviews, and offer guidance to Klobuchar and Franken. In the press release, Klobuchar stated that the candidate should be a seasoned, respected attorney who is fair-minded, able to work productively with local, state and federal law enforcement agencies, and who is committed to seeing that justice is done under the law and for the people of Minnesota.

Those wishing to be considered for the position of U.S. Attorney should submit letters of interest by June 3, 2013 to: Judge Timothy O’Malley, U.S. Attorney Advisory Committee, c/o Caroline Holland, Office of Senator Amy Klobuchar, 1200 Washington Avenue South, Suite 250, Minneapolis, MN 55415. Letters may also be e-mailed to caroline_holland@judiciary-dem.senate.gov.

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law. EEOC charges alleging GINA violations have increased each year. Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009. Some of GINA’s regulations are as follows.

It is illegal for employers to discriminate against employees or applicants based on their genetic information.

Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.

GINA also applies to third parties. So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.

There are exceptions for voluntary health risk assessments. However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case. In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.